Category Archives: Retaliation

The U.S. Supreme Court decided that both verbal and written complaints by an employee about violations of the Fair Labor Standards Act (“FLSA”) are considered protected conduct under the anti-retaliation provisions of the law. These complaints typically relate to an employee not getting paid overtime or not getting paid anything for hours worked. The decision is Kasten v. Saint-Gobain Plastics Corporation, March 22, 2011.

The decision was based on the following language from the FLSA, Sec. 215(a)(3):

[An employer may not] discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.

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The U.S. Senate passed a bill on November 30, 2010, that passed into law will impose stricter food safety standards and more authority to the Food & Drug Administration to regulate tainted food. Included in the Food Safety Modernization Act, Senate Bill 510, at Section 402, are protections for employees of an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food. The protections of the proposed law will protect an employee that has:

Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any order, rule, regulation, standard, or ban under this Act, or any order, rule, regulation, standard, or ban under this Act;

Testified or is about to testify in a proceeding concerning such violation;

Assisted or participated or is about to assist or participate in such a proceeding; or

Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act, or any order, rule, regulation, standard, or ban under this Act.

Where the employee has made one of the protected disclosures, the employer may not in any manner discriminate against the employee with respect to the compensation, terms, conditions or other privileges of employment. This provision will likely include protection against adverse actions similar to other non-retaliation laws which prohibit termination of employment, suspension, demotion, pay cuts, denial of promotion, rejection of employment upon application, and the like when such actions are motivated in substantial part by the protected disclosure.

The remedies provided include injunctive relief (an order to stop the unlawful retaliation), reinstatement, back pay with interest, special damages, attorney’s fees, litigation costs, and expert witness fees.

The procedure to file a complaint for a violation of this proposed law requires filing with the Occupational Safety and Health Administration (OSHA) within 180 days of the retaliatory act. OSHA must then conduct an investigation and can order relief. The OSHA order is then subject to appeal by either party to an administrative law judge with the Department of Labor, whose order can then be appealed to an appeals review board, whose order can then be appealed to the federal district courts.

The House of Representatives passed a similar bill earlier this year, H.R. 2749. The two bills must now be reconciled and voted on again. The consolidated bill should pass in 2011.

The Seventh Circuit Court of Appeals, a Federal court, threw out a jury verdict in favor of an employee on a discrimination claim because the court found that the workplace conduct was not so unbearable or intolerable that a reasonable person would be forced to quit. Chapin quit his job after the employer threatened to fire him if he did not withdraw a complaint of discrimination that the had pending against a former employer (related to his current employer). Chapin said he quit because of the threat. Subsequently, other representatives of the employer contacted the employee to say he could still have his job and that he would not be fired. The employee decided not to go back to the job because of the threat. The employee claimed that his resignation was really a “constructive termination,” meaning that he quit due to the employer’s conduct—the threat. “Constructive discharge” is is a recognized theory of recovery under the law, and it occurs when the employee shows that he or she was forced to resign because his or her working conditions, from the standpoint of the reasonable employee, had become unbearable. The Seventh Circuit threw out the jury’s finding because it said that the threat, which was essentially withdrawn, did not satisfy either of the two tests for a claim of constructive discharge.

Under the first test for constructive discharge, an employee must have resigned due to discriminatory harassment that rises to some degree above that which is required to have a hostile work environment. It must essentially be extra hostile, so to speak (my words, not the court’s). This is meant to encourage employers to fix the problem without making it liable for a constructive discharge before it has the opportunity to fix it.

The second test for constructive discharge is when an employer acts in a manner so as to have communicated to a reasonable employee that he or she will be terminated. Here, the employee is simply quitting before the axe falls. The court still requires the employee to show that the working conditions were intolerable at the time for reasons other than the looming termination.

In both tests, the court is looking for a hostile environment based on a protected characteristic like age, race, religion, gender, etc., or conduct in retaliation for having opposed discrimination or participated in some procedure of enforcing the non-discrimination laws. This is the key connection to the discrimination laws that makes the conduct actionable in the first place.

In Chapin’s case, the Seventh Circuit found that Chapin did not show that the workplace was so intolerable that a reasonable person would not continue working there. The Court found significant that the threat was withdrawn, the employer did not indicate that the threat would be carried out imminently, and that the employee then chose not to return to work when the threat no longer existed.